Re Joseph David QC

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 12 December 2011
• Neutral Citation: [2011] SGHC 262
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 853 of 2011
• Published date: 29 December 2011
• Year: 2011
• Hearing Date: 16 November 2011
• Plaintiff Counsel: Chou Sean Yu, Melvin Lum and Daniel Tan (Wong Partnership LLP)
• Defendant Counsel: Edmund Jerome Kronenburg and Lye Hui Xian (Braddell Brothers LLP),Jeffrey Chan Wah Teck SC (Attorney General's Chambers),andMatthew Saw (Lee & Lee)
• Subject Matter: Legal Profession,Admission,ad hoc
• Citation: [2011] SGHC 262

V K Rajah JA:

This application was made pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (the “LPA”) for Mr David Joseph QC (the “Applicant”) to be admitted as an advocate and solicitor of Singapore for the purpose of representing the plaintiffs in Originating Summons (“OS”) No 807 of 2010 (“OS 807”) and OS No 913 of 2010 (“OS 913”), specifically Registrar’s Appeal (“RA”) No 278 of 2011 (“RA 278”), RA No 279 of 2011 (“RA 279”), Summons (“SUM”) No 4064 of 2011 (“SUM 4064”) and SUM No 4065 of 2011 (“SUM 4065”) and any further proceedings in relation to these matters (including any appeals thereto). It bears mention that this was the first application for an ad hoc admission of a Queen’s Counsel since the application in OS No 621 of 2007 filed on 23 April 2007 to admit Mr Gavin James Millar QC was dismissed.

The second defendant in OS 807 and OS 913, PT First Media TBK (formerly known as “PT Broadband Multimedia TBK”), was the respondent in this application (the “Respondent”). The Respondent vigorously objected to the ad hoc admission of the Applicant on the ground that the proceedings are not of sufficient difficulty and complexity to warrant admission of a Queen’s Counsel. However, it is noteworthy that both the Attorney-General and the Law Society of Singapore (the “Law Society”) raised no objections in relation to the Applicant’s application and agreed that the legal issues in the various proceedings were of sufficient difficulty and complexity to warrant the exercise of judicial discretion in favour of the Applicant’s admission (see [58] below). After hearing all parties, I allowed the application. As such applications have been infrequent (and scarcely acceded to) over the course of the last two decades, I think it will assist the Bar if the reasons underpinning my decision are made known lest it be mistakenly thought that the criteria for assessing such applications have been suddenly and radically remodelled without legislative intervention (see also [60] below).

Background facts

OS 807 and OS 913 involved eight plaintiffs and three defendants who had participated in arbitration proceedings conducted under the auspices of the Singapore International Arbitration Centre (“SIAC”) in SIAC Arbitration No 62 of 2008 (the “Arbitration”). Singapore was the seat of the Arbitration which was conducted pursuant to the third edition of the SIAC Arbitration Rules, 1 July 2007 (the “SIAC Arbitration Rules”). The arbitral tribunal consisted of two retired English Judges (Sir Simon Tuckey and Sir Gordon Langley) and Mr Stewart Boyd QC (the “Tribunal”). The eight plaintiffs nominated Sir Gordon Langley as their arbitrator and the three defendants nominated Mr Stewart Boyd QC as their arbitrator with Sir Simon Tuckey being jointly appointed as the third arbitrator by both parties. The dispute concerned a failed joint venture relating to the supply of satellite-delivered direct-to-home pay television services in Indonesia. It has an extended, complicated and sulphurous history that I need not restate in any detail for the purposes of the present application.

The eight plaintiffs were part of the Astro Group, a Malaysian broadcasting and media entity, and comprised of (a) Astro Nusantara International BV; (b) Astro Nusantara Holdings BV; (c) Astro Multimedia Corporation NV; (d) Astro Multimedia NV; (e) Astro Overseas Limited (formerly known as AAAN (Bermuda) Limited); (f) Astro All Asia Networks PLC; (g) Measat Broadcast Networks Systems Sdn Bhd; and (h) All Asia Multimedia Networks FZ-LLC (collectively referred to as the “Plaintiffs”).

The three defendants were (a) PT Ayunda Prima Mitra (the “first defendant”); (b) the Respondent; and (c) PT Direct Vision (the “third defendant”) (collectively referred to as the “Defendants”). The first defendant and the Respondent were part of an Indonesian conglomerate called the “Lippo Group”, while the third defendant was the purported joint venture company for the satellite TV venture.

The Applicant was instructed by WongPartnership LLP, and was the lead counsel for the Plaintiffs in the Arbitration. Mr Laurence Rabinowitz QC was instructed by Drew & Napier LLC, and was the lead counsel for the first defendant and the Respondent. Mr Davinder Singh SC was joint lead counsel for the first defendant and the Respondent at the preliminary stages of the Arbitration, but did not appear at the final merits hearing. Mr Oommen Mathew of Eversheds LLP appeared for the third defendant.

At the Arbitration, the Tribunal unanimously granted five awards in favour of the Plaintiffs, namely (collectively referred to as the “Awards”): (a) the 7 May 2009 award (“the Preliminary Award”); (b) the 3 October 2009 award; (c) the 5 February 2010 award; (d) the 16 February 2010 award; and (e) the 3 August 2010 award.

The Awards comprised of very significant sums in multiple currencies. In summary, the Defendants were found to be jointly and severally liable for at least the aggregate sum of USD81,865,542.54, GBP940,024.00, RM139,412,160.00 and SGD3,918,049.13. The third defendant was additionally found liable for at least an aggregate sum of USD128,983,939.46 and RM144,889,736.00.

Leave to enforce the Awards as judgments of the High Court of Singapore were subsequently sought by the Plaintiffs, pursuant to s 19 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the “IAA”), first in OS 807 and subsequently in OS 913. As OS 807 did not include an application for leave to enforce the final award, interests and costs, OS 913 was filed for leave to enforce the same. Leave was granted by Orders of Court on 5 August 2010 (for OS 807) and 3 September 2010 (for OS 913) (referred to henceforth collectively as the “Enforcement Orders”).

The Enforcement Orders provided that in the event that service of the Enforcement Orders was effected on the Defendants outside the jurisdiction of Singapore, the Defendants were allowed to apply to set aside the Enforcement Orders within 21 days after such service. The Enforcement Orders were served on the Defendants in Indonesia, and the Plaintiffs entered judgments in terms of the Awards on 24 March 2011 (the “24 March 2011 Judgments”) when the Defendants did not apply to challenge the Enforcement Orders within the stipulated timeframe of 21 days.

Subsequently, the Respondent filed SUM No 1911 of 2011 (“SUM 1911”) and SUM No 1912 of 2011 (“SUM 1912”) on 3 May 2011 to set aside the 24 March 2011 Judgments on the basis that the service of the Enforcement Orders was not valid and seeking leave to apply to set aside the Enforcement Orders within 21 days of the Plaintiffs’ service of the Enforcement Orders on the Respondent in accordance with the applicable laws of the Republic of Indonesia governing the service of such documents. On 22 August 2011, an Assistant Registrar (“AR”) hearing SUM 1911 and SUM 1912 decided that service of the Enforcement Orders was not valid. However, he also concurrently declared that the Respondent was deemed to have been served with the Enforcement Orders on 22 Aug 2011 and granted the Respondent leave to set aside the Enforcement Orders by 12 September 2011 (ie, within 21 days from his order).

On 5 September 2011, the Plaintiffs filed RA 278 and RA 279, appealing against the AR’s orders in SUM 1911 and SUM 1912 respectively. On 12 September 2011, the Respondent, in compliance with the AR’s order, filed SUM 4064 and SUM 4065 to set aside the Enforcement Orders.

RA 278, RA 279, SUM 4064 and SUM 4065 have been fixed for hearing together before the same High Court Judge, on account of various common issues of law. As regards to the urgency of the hearing of these issues, the Counsel for the Applicant informed me that there was a worldwide Mareva injunction currently in place and ongoing proceedings in foreign jurisdictions, viz, (a) a garnishee application in Hong Kong by the Plaintiffs on an alleged creditor of the Respondent and (b) applications in Indonesia by the Plaintiffs for the Indonesian Supreme Court to recognise the other arbitral awards, although the Indonesian Supreme Court has refused to recognise the Preliminary Award (see [38] below).

The law on ad hoc admission of English Queen’s Counsel

Section 15(1) of the LPA is identical to the section governing ad hoc admissions of Queen’s Counsel in the earlier editions of the LPA (ie, s 21(1) of the Legal Profession Act (Cap 161, 1997 Rev Ed) and s 21(1) of the Legal Profession Act (Cap 161, 2001 Rev Ed)). Section 15(1) of the LPA provides as follows:

15.—(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case where the court is satisfied that it is of sufficient difficulty and complexity and having regard to the circumstances of the case, admit to practise as an advocate and solicitor any person who — (a) holds Her Majesty’s Patent as Queen’s Counsel; (b) does not ordinarily reside in Singapore or Malaysia, but has come or intends to come to Singapore for the purpose of appearing in the case; and (c) has special qualifications or experience for the purpose of the case.

[emphasis added]

In determining an application under s 15(1) of the LPA, the courts have usually applied a three-stage test (see, eg, Re Caplan Jonathan Michael QC [1997] 3 SLR(R) 412 (“Caplan QC”) at [12]; Re Platts-Mills Mark Fortescue QC [2006] 1 SLR(R) 510 (“Fortescue QC”) at [6]): first, whether the case contained issues of fact or law of sufficient difficulty and complexity to justify the admission of a Queen’s Counsel (the “first stage”); second, whether the circumstances of the case warranted the court’s exercise of discretion in favour of the applicant (the “second stage”); and third, whether the applicant was a suitable candidate for admission (the “third stage”).

With regard to the first stage, the Court of Appeal noted in Godfrey Gerald QC v UBS AG and...